Galuszynski v. City of Chicago

• Decision Date: 26 February 1985
• Docket Number: No. 84-1224,84-1224
• Citation: 131 Ill.App.3d 505,475 N.E.2d 960,86 Ill.Dec. 581
• Parties: , 86 Ill.Dec. 581 Isabel GALUSZYNSKI and Sylvia Galuszynski, Plaintiffs-Appellants, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 960

475 N.E.2d 960

131 Ill.App.3d 505, 86 Ill.Dec. 581

Isabel GALUSZYNSKI and Sylvia Galuszynski, Plaintiffs-Appellants, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.

No. 84-1224.

Appellate Court of Illinois First District, Second Division.

Feb. 26, 1985.

Goldberg & Goldberg, Chicago (John B. Schwartz, Chicago, and Stephen J. Caron, Chicago, of counsel), for plaintiffs-appellants.

Corp. Counsel of the City of Chicago, Chicago (Philip A. Bronstein, Jennifer A. Keller, Asst. Corp. Counsels, Chicago, of counsel), for defendant-appellee.

STAMOS, Presiding Justice:

This is a personal injury action brought by Isabel and Sylvia Galuszynski against the city of Chicago (city), seeking recovery for injuries suffered at the hands of burglars as the result of the city's failure to promptly respond to plaintiff's emergency call through the "911" emergency telephone system to the Chicago Police Department. Defendant moved to dismiss plaintiffs' four-count complaint for failure to state a cause of action, and the trial court granted the motion. Plaintiffs appeal.

On January 24, 1984, at approximately 9:45 p.m., plaintiff Sylvia Galuszynski placed a call to the Chicago Police Department through the 911 emergency telephone system to report the presence of an intruder attempting to break into her home. An employee of the police department answered the call and, after obtaining the necessary information, informed plaintiff that police officers were on the way and advised plaintiff to "watch for the police." However, police officers did not respond to plaintiff's call until 10:10, 24 minutes after she placed the call. During this delay, armed intruders entered plaintiff's home and attacked her and her mother Isabel, injuring them. The intruders also stole money, jewelry and other personal property.

The city moved to dismiss plaintiffs' complaint on the ground that section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act provided immunity for the city in the absence of a special duty owed to plaintiffs, and that plaintiffs had failed to plead the existence of a special duty.

The common law concept that, generally, a municipality is not liable for its failure to supply police protection is embodied in section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act, (Ill.Rev.Stat.1983, ch. 85, par. 4-102) which provides: "Neither a local public entity nor a public employee is liable * * * for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals." It is well settled that the duty of the police is to preserve the well-being of the community at large, and that such duty is generally not owed to specific individuals. (Huey v. Town of Cicero (1968), 41 Ill.2d 361, 363, 243 N.E.2d 214; Santy v. Bresee 129 Ill.App.3d 658, 84 Ill.Dec. 853, 473 N.E.2d 69 (4th Dist.1984); Curtis v. County of Cook (1982), 109 Ill.App.3d 400, 407, 65 Ill.Dec. 87, 440 N.E.2d 942; Porter v. City of Urbana (1980), 88 Ill.App.3d 443, 445, 43 Ill.Dec. 610, 410 N.E.2d 610.) This rule rests upon public policy considerations and "embodies the conclusion that a police department's negligence--its oversights, blunders, omissions--is not the proximate or legal cause of harms committed by others." Porter v. City of Urbana (1980), 88 Ill.App.3d 443, 445, 43 Ill.Dec. 610, 410 N.E.2d 610.

"To survive a motion to dismiss, it is not sufficient that a complaint merely allege a duty, but the pleader must allege facts from which the law will raise a duty, and facts must be alleged showing an omission of that duty and resulting injury." (Marvin v. The Chicago Transit Authority (1983), 113 Ill.App.3d 172, 176, 68 Ill.Dec. 786, 446 N.E.2d 1183.) Thus, we must examine the instant complaint to determine whether plaintiffs have alleged sufficient facts from which the law will raise a duty and which will therefore support the cause of action in view of the tort immunity statute.

Plaintiffs' complaint alleges that the city represented to the public that the purpose of the 911 emergency system was to serve as a means of contacting the police in emergency situations requiring immediate police response; that plaintiffs called the police department through the 911 system, reported a burglary in progress and were told to "watch for the police;" and that the city "carelessly and negligently" and "willfully and wantonly" failed to dispatch police officers to plaintiffs' home for 24 minutes, thereby allowing intruders to complete their forced entry of plaintiffs' home and cause injury to plaintiffs. Plaintiffs contend that their complaint states a cause of action under the "special duty" exception to the general rule that municipalities are not liable for failure to exercise general police powers.

The general requirements of the "special duty" exception, whereby the police owe a special duty to an individual, rather than merely to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while plaintiff is under the direct and immediate control of employees or agents of the municipality. Marvin v. The Chicago Transit Authority (1983), 113 Ill.App. 172, 176, 68 Ill.Dec. 786, 446 N.E.2d 1183; Curtis v. County of Cook (1982), 109 Ill.App.3d 400, 407, 65 Ill.Dec. 87, 440 N.E.2d 942; Bell v. Village of Midlothian (1980), 90 Ill.App.3d 967, 970, 46 Ill.Dec. 382, 414 N.E.2d 104.

In the instant case plaintiffs have satisfied the first three requirements. The complaint alleges that the city created and promoted the 911 emergency telephone number to permit faster police response to emergencies; that the plaintiffs were faced with an emergency and called the police through the 911 system, that the police department employee answering the call improperly classified plaintiffs' situation as a "non-emergency;" and that this error resulted in a 24-minute delay on the part of the police department in responding to plaintiffs' call. However, plaintiffs have made no allegations which lead to the conclusion that plaintiffs' injuries occurred while plaintiffs were under the direct and immediate control of city police personnel.

In Gardner v. Village of Chicago Ridge (1966), 71 Ill.App.2d 373, 219 N.E.2d 147, the plaintiff was attacked, in the presence of police officers, by four persons whom the police had requested the plaintiff's assistance in identifying. We reversed...